News: A patient underwent a total hip replacement. Allegedly, the procedure caused a blood clot in his lungs, leading to his death two weeks later. The patient’s widow filed a malpractice suit, claiming the physician’s botched surgery caused the patient’s death. The defendant physician filed a procedural challenge, arguing the claim was late under the state’s medical malpractice statutes. The trial court agreed.
On appeal, the court reversed the decision. The appellate court determined the statute applied to “medical claims” and not statutory wrongful death claims.
Background: On Aug. 21, 2013, a patient underwent a total hip replacement surgery and was discharged the same day. Approximately two weeks later, the patient died from a pulmonary embolism. The patient’s surviving widow filed an initial complaint on Jan. 30, 2015, but voluntarily dismissed that complaint in January 2018.
In January 2019, the patient’s widow filed a subsequent action against the physician and the practice group, raising causes of action for survivorship, loss of consortium, and wrongful death. The plaintiff did not file a cause of action specifically for medical malpractice.
To support the claim, the patient’s widow submitted a written statement of merit from a board-certified physician in orthopedic surgery. After reviewing the records, the expert concluded the defendant physician and practice group breached the standard of care by causing unnecessary injuries to the patient, leading to his death.
The defendants denied liability on the merits and filed a procedural challenge through a motion for summary judgment. The defendants argued the subsequent complaint was untimely because it was filed more than four years after the patient’s death. According to applicable state law, medical malpractice actions must be filed within four years, which is known as a statute of repose. The trial court granted the motion, finding the statute of repose applied to the plaintiff’s wrongful death claim because the underlying events were derived from a medical claim.
The plaintiff appealed the dismissal. The appellate court analyzed the medical malpractice statute of repose and whether it applied to a statutory wrongful death claim. The court ruled there were no references to wrongful death in the specific statute, that a wrongful death claim was not a “medical” claim, and concluded the statute of repose did not apply. The plaintiff additionally challenged the trial court’s consideration of the defendants’ motion, arguing it was submitted nearly 10 months after the deadline. However, the appellate court ruled the trial court had discretion to review a tardy motion, and there was a reasonable basis for the tardy motion given an intervening development and decision in a different medical malpractice case with similar legal issues.
The plaintiff’s subsequent action was ruled timely, and the defendants’ procedural challenge was overruled. The appellate court reversed the trial court, sending the matter back for further proceedings. The defendants will be required to defend the action on substance rather than on procedure.
What this means to you: This case holds both substantive and procedural lessons for care providers. Since the litigation and this recent appellate decision focused on the procedural aspects, it is unclear what precisely went wrong during or after the hip replacement surgery to cause the patient’s death. Pulmonary embolisms are a known risk of certain surgeries when blood vessels can be damaged and when patients spend long periods in bed. These factors significantly increase the risk of an embolism, and care providers should be cautious when observing post-surgery patients at elevated risk. It is important to implement any applicable regulations that require either administration of anticoagulant drugs, anti-embolism mechanical devices, or cloth compression hose on the lower extremities of all hospitalized patients.
It is unclear if this patient demonstrated signs and symptoms of an embolism, such as wheezing, shortness of breath, low oxygen saturation, and/or chest pain, and whether the physician disregarded these symptoms or misdiagnosed the patient. Providers monitoring post-surgery patients must be aware of the common signs and symptoms and act quickly. Failing to properly diagnose and/or treat an embolism can constitute medical malpractice.
On the procedural side, the defendants almost successfully defeated the litigation based on the age of the case. States have enacted various statutes of limitations and statutes of repose that require an injured party to initiate litigation within certain time frames, which can range from one to four years or longer. If an injured party fails to do so within the applicable time, it is proper for the defendant care providers to challenge this untimeliness and potentially defeat the litigation without delving into whether the provider’s actions satisfied the standard of care.
While deadlines differ between states, there are significant public policy reasons for these deadlines. For one, imposing strict timelines to file encourages parties to act diligently once they learn of their own harm. Courts do not encourage parties to sit idly by, and it is typically within all parties’ interests to reach a timely resolution. Another important policy aspect is giving individuals a sense of finality. These statutes ensure providers cannot be forced to litigate claims that occurred 10 or 20 years ago. Knowing past actions will not be dredged up is additionally helpful for insurance purposes, since insureds and insurers can limit the scope of liability, thereby reducing claims and premiums.
In this case, the defendants challenged liability because the plaintiff filed the action more than five years after the patient’s death, based on this state’s four-year statute of repose. While the appellate court disagreed with the defendants’ arguments on the legal interpretation and application of the law concerning what is a “medical claim,” this case demonstrates how procedural challenges can and should be explored as an avenue for defense.
Procedure can be equally as important as substance in defending against litigation. It is important to consult with counsel while reviewing the applicable facts and specific laws to understand potentially successful procedural challenges. Of course, there are no guarantees in litigation, but statutes of limitations and statutes of repose provide concrete timelines that must be followed. When there is no dispute about the underlying dates or events, it can be apparent a patient’s claim is barred for untimeliness. Usually, providers can be confident that absent unique circumstances, a surgery from 20 years ago likely will not come back to haunt them. That said, consulting qualified counsel for a definitive answer in a particular state often is a prudent decision to address compelling concerns.
REFERENCE
- Decided May 19, 2022, in the Court of Appeals of Ohio, Tenth Appellate District, Case Number 21AP-556.
This case holds both substantive and procedural lessons for care providers. Procedure can be equally as important as substance in defending against litigation. It is important to consult with counsel while reviewing the applicable facts and specific laws to understand potentially successful procedural challenges.
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